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Are employers sitting on an age discrimination time bomb?

January 8, 2019

A report earlier this summer claimed that the government is failing to protect millions of UK workers from age discrimination. As around a third of UK workers will be over the age of 50 within two years, this is a ticking time bomb for employers. In this blog, I look at the law surrounding age discrimination and what you should do if you think you are being discriminated against on the basis of your age.

Britain’s population is aging. Almost a quarter of the UK population will be aged 65 or over within the next two decades. Yet the government is neglecting older workers. After the release of a critical recent report by the Women and Equalities Committee, its chair, Maria Miller MP, said: “As a country, we face serious challenges recruiting and retaining an experienced and skilled workforce. Until we tackle discrimination against the growing number of over 50s, they will continue to be consigned to the ‘too old’ pile instead of being part of the solution.”

The types of issues faced by older employees were encapsulated in the case of Dove v Brown & Newirth Ltd a couple of years ago. Alan Dove, 61, had been nicknamed “Gramps” for several years by colleagues at the Hertfordshire jewellery manufacturer for whom he had worked for more than 25 years. Mr Dove, who had no grandchildren, was the oldest member of the sales team by more than ten years. He claimed that his clients had been “engineered away from him” by colleagues.

The firm’s head of sales, Gareth Thomas, said he considered the nickname “an affectionate term of address” but Mr Dove said he found it disrespectful and hurtful. Mr Thomas admitted to writing in an email that another jeweller had complained that Mr Dove was “too long in the tooth” and “old fashioned”. The Tribunal found in favour of Mr Dove and he was awarded £63,390.95 for loss of earnings and injury to his feelings.

The claim made by Mr Dove was brought under the Equality Act 2010. This makes it unlawful to discriminate against employees, job seekers and trainees because of their age. (It should be pointed out that this could be because they are younger than a relevant or comparable employee as well as older.)

Age discrimination can effectively be broken down into four main types:

Direct discrimination

It is discrimination to treat someone “less favourably” because of their actual age (direct discrimination), perceived age (direct discrimination by perception) or the age of someone they associate with (direct discrimination by association).

In one case, a Tribunal agreed that it was age discrimination when a general manager said old workers were like old football players and needed to leave to bring in new blood otherwise the team would not be efficient.

In certain circumstances, discriminating because of someone’s actual age is permitted if it is “a proportionate means of achieving a legitimate aim”. An example is a case from last year where it was decided that there was no discrimination after bar and waiting staff were replaced by new staff that better suited a “modern and trendy” image.

Indirect discrimination

This can arise if there is a policy, practice, procedure or workplace rule that applies to all workers but particularly disadvantages people of a particular age. In a well-publicised case last year, a Tribunal found in favour of 200 judges whose pension entitlements were cut saying it was indirect discrimination.

Harassment

This can occur when unwanted conduct relating to someone’s age has the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. An estate agent was found to have committed harassment (and hence direct age discrimination) last year when it told an employee she was “better suited to a traditional estate agency”.

Victimisation

This would take place if an employee who has complained of or supported a claim of age discrimination is subsequently treated unfairly. In a case in Northern Ireland, an employer sacked a woman from his dry cleaning business after she brought an age discrimination case against him. Following her dismissal, she claimed victimisation and won nearly £25,000 from her former employer.

Who can bring a claim for age discrimination?

All workers and employees have discrimination rights, as do apprentices and self-employed people working under a contract to do the work personally. The rights extend to “office holders” such as partners in a business and barristers.

The above is, of course, a simplified outline of the law and there are some exceptions in certain circumstances.

My advice to employers is that they should put in place policies intended to prevent age discrimination in relation to recruitment, pay reviews, benefits, selection for promotion, training, redundancy and dismissal.

If you are an employee or job applicant who feels you have been discriminated against because of your age, please contact me for a confidential discussion.

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